Introduction
Liability for carelessness is given its legal expression in the law relating to negligence. Compensation paid to settle negligence claims continues to increase year on year in the NHS, with NHS England alone paying some £1.75 billion last year for clinical negligence claims (Sidaway v Bethlem Royal Hospital [1985]). As well as any damages that may be awarded, district nurses accused of negligence face having their professional integrity and good name challenged in court and the prospect of further action being taken by their employer and regulatory body. This article considers the elements of a negligence action and how these are applied to district nursing.
Negligence
Negligence is a civil wrong or Tort and is best defined as ‘actionable harm’ (Bolam v Friern HMC [1957]). Negligence has developed in English law under the common law by judges setting rules through decided cases. These cases have established three key elements for a successful negligence action:
Duty of care
In law, we are not generally required to be careful to each other. There is no duty of simple rescue in England and Wales. However, in certain situations called ‘duty situations’, the nature of the relationship gives rise to a duty of care. The courts rely on previous cases to guide them as to when a duty of care arises. In novel situations, they apply the test established in Caparo Industries Plc v Dickman [1992], where the forseeability of harm, the closeness of the relationship and whether it is just and reasonable to impose a duty is considered by the courts. In JD v East Berkshire Community Health NHS Trust [2003], the court of appeal held that a duty of care was not owed by health staff to parents of children in child protection investigations.
The relationship between district nurse and patients is recognised in English law as giving rise to a duty situation (Kent v Griffiths & Others [2000]). This is a duty to be careful, to take care and not to harm the patient through careless acts or omissions.
Breach of duty
Once a duty of care has been established, a patient who feels they have been harmed by a district nurse's negligence must show that the care given falls below the standard required in law as a result of carelessness.
District nurses are generally expected to meet the standard of care set by the profession, employer and the law. In law, the professional standard of care is determined by reference to Bolam v Friern Hospital Management Committee [1957]. Known as the Bolam test, it requires that professionals meet the standard of the ordinary skilled person exercising and professing to have that special skill.
Lord Diplock in R(Burke) v GMC [2005] described a district nurse's duty of care as a single comprehensive duty covering all the ways you are called on to exercise skill and judgement in improving the mental and physical condition of the patient.
Case law demonstrates that the standard covers direct and indirect care and treatment, advice giving and record-keeping, including the quality of handwriting (Prendergast v Sam and Dee Ltd & others [1989]). If a district nurse's actions are in keeping with a respected body of professional opinion, then they will not have fallen below the standard required in law and there will be no liability in negligence. This will be the case even if there were different ways of performing a task. A judge cannot find negligence just because they prefer one professional's view over another's (Maynard v West Midlands RHA [1984]).
However, in Bolitho v City & Hackney Health Authority [1998], the House of Lords held that any expert evidence used to support the professional standard must stand up to logical analysis. The existence of a common practice in a profession does not necessarily mean that it is not negligent. Even if the district nurse has followed accepted practice, this does not necessarily preclude a finding of negligence if the standard is not evidence based or research focused and so does not meet the test of logical analysis (Hucks v Cole [1968]).
In PK v Bolton NHS Foundation Trust [2018], a woman argued that she had suffered an adjustment disorder and required further surgery following a mastectomy that had left her with excessive skin and a poorly aligned scar. A district nurse who visited the woman emptied fluid from the wound drain, which then fell out, but the treating hospital refused to expedite her follow-up appointment. The hospital defended their actions saying that they had removed the cancerous tissue and could do little more about the excessive skin at the wound site.
Following Bolitho, the County Court held that although cancerous tissue had successfully been removed, the wound was cosmetically and functionally unacceptable and more could have been done to remove the excessive skin. Agreed damages of £15,000 were awarded.
The court reminded health professionals that they would not be exonerated because others too are negligent or because common professional practice is slack.
The district nurse had acted correctly in referring the patient back to the treating hospital. There are times where this type of referral is the only logical course of action. In Marriott v West Midlands HA [1999], a patient continued to complain of drowsiness and loss of appetite a week after falling down stairs and hitting his head. His GP carried out a routine neurological examination at home and found no abnormalities. The patient subsequently suffered serious deterioration in his condition, becoming hemiplegic. Despite expert evidence supporting the GP's course of action, the court of appeal held that the only logical thing to do was refer the patient to a hospital for a brain scan as this was the only way to exclude more serious complications.
As the Bolam test requires district nurses to perform to the standard of the ordinary or average district nurse, no allowance is made for beginners, and it is no defence to claim that inexperience was the cause of the harm (Nettleship v Weston [1971]). However, the more a district nurse puts themselves out as an expert, the more they progress in their field and the higher is the standard of care imposed on them. A band 8 district nurse will be held to a higher standard than a band 5 district nurse. District nurses are also expected to keep their knowledge up to date throughout their career, although the law accepts that a period of time must be allowed for the information to come to the attention of the profession (Roe v Ministry of Health [1954]).
Causation
Causation requires that the patient is able to show that as a result of the district nurse's carelessness, they suffered harm recognised by the court. The patient will have to show on the balance of probabilities (greater than 50%), or more likely than not, that the breach of duty caused the injury. This is based on the ‘but for’ test, that is, but for the district nurse's carelessness the patient would not have suffered injury.
In Barnett v Chelsea and Kensington Hospital Management Committee [1969], a patient was not seen by a casualty officer when he attended A&E with stomach pains and vomiting. It transpired that the patient had arsenic poisoning and died later. The doctor had failed to see the man and therefore a breach of duty was established, but even if he had seen the patient, the antidote could not have been administered quickly enough to reverse the effects and he would have died anyway. Thus, the claim failed even though a breach of duty was established because the breach did not cause death.
In Bayliss v Blagg & another [1954], a nurse failed to heed the concerns of the father of a patient whose leg was in a plaster. The court found that although the plaster had been put on with care and skill, there had subsequently been a high degree of negligence covering a protracted period of time where the nurse failed to check for herself or heed the warnings she received of deterioration in the patient's condition. When the plaster was removed, the calf muscle came away with it as a result of a severe and prolonged infection in the leg.
Emergency and unscheduled care
District nurses travel to see patients in their own homes, and it is not uncommon for them to encounter emergency or first-aid situations en route. District nurses might argue that as the people involved are not their patients, no duty of care arises and they are not obliged to offer assistance. The NMC Code (2015) holds that district nurses must always offer help if an emergency arises in their practice setting or anywhere else (standard 15).
District nurses would therefore be expected to offer help in such situations and that would establish a duty of care with the injured person.
The law does modify the standard of care in such circumstances to take account of the urgent and unscheduled nature of the treatment. In Wilsher v Essex Health Authority [1988], Lord Mustill approved the decision of the Canadian Supreme Court in Wilson v Swanson (1956) in relation to emergencies where they held that there was no negligence when a health professional had to make an immediate decision whether to treat when the treatment was subsequently found to have been unnecessary.
Lord Mustill further held that an emergency may overburden the available resources, and, if a district nurse was forced by circumstances to do too many things at once, the fact that they did one of them incorrectly should not lightly be taken as negligence, nor will there be negligence simply because a reasonably competent health professional would have made a different decision, given more time and information.
Despite the requirements of the code and this long-established common-law dictum, health professionals remain reluctant to intervene through fear of liability. Eleven staff, including nurses, porters and paramedics, were suspended and later had disciplinary action taken against them for failing to assist a person who collapsed outside an emergency department (Birmingham Mail, 2012).
To overcome such hesitation and concern over liability, parliament introduced the Social Action, Responsibility and Heroism Act 2015. This law requires a court, when considering the standard of care in a claim for negligence, to have regard to whether the alleged negligence occurred when the person:
Conclusion
Although being sued for negligence is a rare event in district nursing, increasing litigation is a real trend in healthcare. While the law is generally content to allow the profession to set its standards of care, it reserves the right to reject a standard that does not stand up to logical analysis. The standard of care covers every aspect of the district nurse–patient relationship and must be evidence based in each case. Failure to meet that standard and causing harm will result in liability in negligence and an award of damages.
In emergency situations, the duty of care imposed on district nurses is modified by the requirements of the Social Action, Responsibility and Heroism Act 2015.